NAGENDRA NATH SEN Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been convicted in two separate cases under Secs.409 and 477-A, I.P.C., and under Section 55, Postal Act, The prosecution case is that the petitioner was a postmaster in charge of the Hatigarh Post Office and in that capacity on different dates in the mon December, 1930, he received five value-payable articles for delivery to the consignees on payment of the price. He delivered the articles and received payments therefor but dishonestly misappropriated the sums realized and dishonestly omitted to make proper entries in the register and in each transaction he is said to have committed an offence under Secs.409 and 477-A, I. P. C, and under Section 55, Postal Act. Three of these transactions were tried in one trial and two of thorn in a separate trial.

(2.) It is urged before us that the charges of three distinct criminal breaches of trust could not be properly tried together with the charges of three distinct falsification of accounts, that the two classes of cases could not be joined together and that such misjoinder of charges has vitiated the trial. Section 233, Criminal P. C, says: For every distinct offence of which any person is accused there shall be a separate charge," and every such "charge shall ordinarily be tried separately.

(3.) Under Section 234 a person may be charged and tried at one trial for three offences of the same kind committed within a space of 12 months. Therefore three offences of criminal breach of trust may be tried together and three offences for falsification of accounts may be tried together. But an offence of criminal breach of trust is not of the same kind as an offence of falsification of accounts. Therefore the trial of two or more charges of criminal breach of trust cannot legally be joined with two or more charges of falsification of accounts: see the case of Raman Behari Das V/s. Emperor A.I.R. 1915 Cal.296 in which it was held that a joinder of three charges under Section 409 with three under Section 477-A, relating to different transactions, is not warranted by any of the exceptions provided in the Code and is illegal and that a misjoinder is absolutely fatal to the trial.